Binion v. Armentrout
| Decision Date | 14 March 1960 |
| Docket Number | No. 47447,No. 1,47447,1 |
| Parties | James BINION, Appellant, v. Dean ARMENTROUT, Respondent |
| Court | Missouri Supreme Court |
William R. Kirby, Louis Beck, St. Louis, for appellant.
F. X. Cleary, C. M. Kirkham, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for respondent.
HOLMAN, Commissioner.
In this action plaintiff sought to recover the sum of $50,000 for personal injuries sustained when he was struck by defendant's automobile. A trial resulted in a verdict for defendant. Plaintiff has duly appealed from the ensuing judgment.
In September 1955 James Simmons and his wife were living separate and apart with Simmons living in St. Louis and his wife in Mississippi. Plaintiff James Binion also lived in St. Louis and Simmons' wife was his niece. Simmons desired to make a trip to Mississippi in an effort to get his wife to return to St. Louis with him and asked plaintiff and Frank Carter to accompany him on the trip. In order to make the trip Simmons borrowed a 1946 Chevrolet pickup truck from plaintiff's brother, Sma Binion. Simmons and his companions left Carter's home at about 9:30 p. m. on September 8, 1955. They intended to get on Highway 61 at the edge of St. Louis and use that highway in making the trip. However, before arriving at Highway 61 they made a 'wrong turn' and got lost. A little later they were going north on Kirkwood Road in the City of Kirkwood when the right rear tire blew out. Kirkwood Road is a fourlane highway with two lanes for traffic in each direction. Plaintiff testified that after the blowout occurred, Simmons pulled the truck as far to the right as he could and still stay on the pavement; that when they got out of the cab on the right side they stepped into weeds growing by the side of the pavement. Plaintiff stated that Simmons and Carter Began to take off the right rear wheel and that he obtained the spare from the spare tire carrier, which was located at the rear and underneath the truck bed, and gave it to them; that they in turn gave him the tire (and wheel) that had been taken off the truck and he threw the damaged tire into the bed on the truck; that while the other men were putting on the spare tire he was at the rear of the truck facing the bed and screwing the nut on the bolt which holds the spare tire carrier in place. It was while plaintiff was in that position that he and the truck were struck by defendant's northbound car. Plaintiff sustained very serious injuries but the issues here involved do not require that such be detailed herein.
Plaintiff testified further that the tailight on the truck was burning; that the streets were dry; that while they were working on the truck cars had approached from the south but had pulled to the left and had passed the truck in the west northbound traffic lane. Plaintiff admitted on cross-examination that he did not look to the south in an effort to discover northbound traffic and that no one used a flashlight or flares to warn traffic approaching from that direction.
Frank Carter testified to about the same state of fact as was related by plaintiff. In addition, however, he stated that he heard no horn or squealing of brakes before defendant's car hit the truck; that the truck was knocked two car lengths toward the north when it was struck. There was evidence that there was a street light on Kirkwood Road a short distance from the place where plaintiff was injured.
As a part of his case plaintiff also read certain questions and answers from defendant's deposition which were admitted as admissions. We will not detail those admissions, however, as they also appear in the defendant's testimony which we will summarize.
Defendant testified that at the time of the occurrence in question he was a supervisor for McDonnell Aircraft and was on his way to work. He stated that he entered Kirkwood Road at Argonne and stopped in obedience to a traffic light at its intersection with Essex and that the instant casualty occurred about four blocks north of Essex. After proceeding from the stoplight defendant was driving in the east lane for northbound traffic at about 25 miles per hour and was about two car lengths behind the car ahead. He stated that just before the collision the car ahead swerved to the left He stated that he had swerved to the left to some extent before he struck the truck and at the instant of contact had probably reduced his speed to 15 miles per hour. He also testified that the truck was partly straddling the line between the two northbound lanes with the left side about a 'foot or so' west of the dividing line and that there were no lights burning on the truck; that just before impact he saw two men jump to the right; 'they took three or four good leaps,' but that neither of those were plaintiff as he was thrown toward the center of the highway by the impact.
Arthur E. Meyer also worked at McDonnell Aircraft and was driving to work on the occasion in question. He stated (as a witness for defendant) that as he entered Kirkwood Road at Essex he saw defendant's car waiting at the stop sign. He testified that there was a car ahead of him as he proceeded north on Kirkwood Road and that he saw the brake lights to on as it swerved sharply to the left, and that he also swerved quickly to the left and was able to avoid striking 'this truck that was out in the highway, and at the time I saw absolutely no lights.'
Plaintiff's case was submitted to the jury upon the humanitarian negligence of defendant in failing to swerve his car to the left or sound a warning and thus to have avoided striking plaintiff. However, plaintiff had sought to also charge the violation of Section 304.017 () as primary negligence on the part of defendant. Paragraph 4 of plaintiff's second amended petition reads as follows: 'That at all times mentioned there was in full force and effect Section 304.017 of the Revised Statutes of Missouri 1949, which provided in substance and effect that the driver of a vehicle, other than a motor bus in truck, shall not follow another vehicle more closely than is reasonably safe and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the roadway, and plaintiff further states that said defendant did on said occasion, negligently and carelessly and in violation of said section, follow another vehicle more closely than was reasonably safe and prudent, under the conditions then and there existing, and that as a direct result of said carelessness, negligence and in violation of said section, said defendant did cause, allow and permit his said automobile to run into and strike the plaintiff, and the automobile-truck in which plaintiff was a passenger, causing him to be seriously and permanently injured as hereinafter more fully described.' Prior to trial defendant filed a motion to strike said paragraph 4 upon the ground 'that the statute referred to in said paragraph 4 was not enacted for the benefit of the plaintiff who, according to his petition, was either a passenger in a standing automobile or a pedestrian in the highway and plaintiff is not entitled to the benefit of protection of said statute.' The trial court sustained said motion to strike and as the first point in his brief plaintiff contends that said ruling deprived plaintiff of his right to submit his cause under the provisions of Section 304.017 and constituted prejudicial error.
Section 304.017, supra, reads as follows: ...
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